102 Wis. 509 | Wis. | 1899
This is avowedly an action in equity to perpetually enjoin the continuance of an alleged public nuisance. The relator, Hartung, does not claim that be has suffered any “private or special injury peculiar to himself,” but explicitly states that the nuisance is a public one, and that be claims the right to maintain this action on behalf of the state,
The remedies in equity by way of injunction in case of a public nuisance were well understood at common law, and were twofold, viz.: (1) In case the threatened public nuisance threatened also to invade private rights and inflict a special and peculiar injury to any person, such person might maintain an action in equity to enjoin its establishment or continuance; (2) in case the nuisance was purely public, the remedy was by bill or information in equity on behalf of the people, instituted by the attorney general or other proper law officer of the state. Thus, so far as the threatened nuisance was private in its aspect it was prevented in a purely private action; and so far as it was public it was prevented in a purely public action. "Wood, Nuisances (3d ed.), §§ Y7Y, 819. This was entirely logical, and the doctrine has been expressly or impliedly approved by many of the American courts which have had occasion to treat the subject. Attorney General v. Railroad Cos. 35 Wis. 425 (see pages 533 et seq.); People v. Vanderbilt, 26 N. Y. 287; People v. Equity G. L. Co. 141 N. Y. 232; Georgetown v. Alexandria C. Co. 12 Pet. 91; District Attorney v. L. & B. R. Co. 16 Gray, 242; 2 Story, Eq. Jur. §§ 922, 923; Baines v. Baker, 1 Ambl. 158; Angell, Watercourses (7th ed.), § 565; 2 High, Inj. (3d ed.), § 1554; Ang. & D. Highways (3d ed.), § 280; State v. Carpenter, 68 Wis. 165; Hunt v. Chicago H. & D. R. Co. 121 Ill. 638; 3 Am. & Eng. Ency. of Law (2d ed.), 481, and cases cited in notes. We have been referred to no case, however, which holds that this action on behalf of the public may be maintained by a private relator without the presence of the proper law officer of the state. It is true that the expression is frequently used that the information may be filed either by the attorney general ex officio, or upon the relation of a private person. District Attorney v. L. & B. R. Co., supra; State ex rel. Little v. D. & S. E. R. Co. 36 Ohio St. 434. But
It seems quite probable that the trial court, in mailing the order allowing the action to proceed in the name of the state upon the relation of a citizen, relied upon what was said in the case of State ex rel. Lamb v. Cunningham (known as the “Gerrymander Case”), 83 Wis. 90. Careful consideration of that case, however, demonstrates its inapplicability to the present case. That case was an action brought in this court, and clearly within its original jurisdiction, because it affected “ the sovereignty of the state, its franchises or prerogatives, or the liberties of its people.” In the Railroad Cases, 35 Wis. 425, if was, in substance, held that the writ of injunction, as given to this court by the constitution, being classed with mandcm/as, habeas corpus, quo wa/rrcmto, and certiorari, was a quasi prerogative writ, and that all of such writs were given to the supreme court for prerogative uses only. Being thus classed with mandamus as a prerogative writ as given to this court, and the law being quite well settled that mcmdamus to enforce the performance of public duties may be sued out by any citizen if the attorney general refuses to appear (Merrill, Mandamus, §§ 229, 230), it was held in the second Gerrymander Case (83 Wis. 90), that this court would entertain an infonpation for injunction to restrain a public officer from enforcing a law which interfered with the liberties of the people, at the suit of a private relator acting in the name of the state, upon permission obtained from the court. But it by no means follows that the same rule applies to injunctions sued out of the circuit court. It has'been already held in this very matter that such a case as this is not one within the original
It has not been necessary to discuss or decide in this opinion whether the attorney general or the district attorney is the proper officer to file such an information as is now before us, in the circuit court. The constitution jaro vides that the powers and duties of the attorney general shall be prescribed by law. Const, art. YI, sec. 3. His general duties are laid down in sec. 163, Stats. 1898. It is made his duty to appear and prosecute and defend all actions and proceedings, civil or criminal, in the supreme court, in which the state shall be interested or a party, and all such civil cases as may be sent or remanded by that court to any circuit court, and to appear for the state in any court in any cause
The view taken of the case makes it necessary to dismiss the appeal. As it was not an action brought by the state, but by a private party, an effective appeal could not be taken without the giving of an undertaking. None was given in this case. Stats. 1898, secs. 3049-3052.
By the Oow't.— Appeal dismissed.